The Role of Legislatures with Regard to Electors

 One of the blogs I read somewhat regularly posted an interesting analysis on how state legislatures might control the installation of Electors. 

You should read the entire piece, but in summary they argue that:

<i>There is thus no daylight between the recently reaffirmed holding of Smiley and the circumstances a court would face were a state legislature to ignore its governor and purport to assign its Electors directly to the loser of the state’s Presidential election. When using its authority under the Presidential Electors Clause, the legislature must comply with the lawmaking procedures prescribed in the state constitution.</i>

http://www.dorfonlaw.org/2020/09/state-legislatures-cannot-act-alone-in.html

What I found most intriguing was one of the comments by David Ricardo who wrote: 

David Ricardo said...

This post is as unassailable as it is irrelevant. Consider the following scenario.

1. All votes are counted except Pennsylvania whose vote will decide the election and which is still counting mail-in votes. The state is trending toward Mr.Biden but the count is not finished.

2. The state legislature, controlled by Republicans passes a resolution stating that the manner of selecting electors will be by the lower house of the state legislature. The resolution calls for all existing ballots to be sealed and destroyed as they are no longer relevant.

3. The lower house selects a slate of pro-Trump electors which effectively awards the election to Trump.

4. The Justice Dept. sides with Trump. U. S. Marshals seize the ballots. The case goes to the Supreme Court. Five justices, Alito, Thomas, Kavanaugh, Gorsuch and Barrett vote to uphold the state legislature and order the electors selected by the legislature to be the sole authorized ones and the votes are immediately destroyed by the Marshals under order of the Court. Roberts joins them only because he thinks a 6 to 3 decision is more legitimate than a 5 to 4 decision.

5. The logic of the Court majority is that the Pennsylvania legislature has acted in accordance with the Constitution; the legislature has determined the manner in which the electors are selected by a resolution process that does not involve the Governor and the precedents and all other legal positions opposing that interpretation of the Constitution by the Court that have been documented by the post are simply ignored.

6. Trump is elected and no one knows what the actual vote in Pennsylvania would have been so he claims victory and legitimacy. Roberts swears him in.

Does this violate all of the logic and precedents and decency and democracy? Are the arguments in this post absolutely correct but play no role in the decision? Is the decision unfair and in violation of every legal, ethical and societal norm? Yes, yes, yes. That don’t matter.

The problem with this post is that academics and people with intellectual integrity cannot seem to grasp the fact that Republicans no longer play by the rules, no longer respect anything but their own interests, no longer have any interest in democratic rule. They only care about their own power. To believe otherwise, as those who authored this post and others who have some shred of decency left seem to do is simply extreme naiveté. One wonders how many betrayals it will take by the conservatives before those who believe in the rule of law catch on to what is really happening or will they ever?

Note: Several years ago the author of this post inadvertently offended those who post and apologized for it and decided not to post again for fear of again inadvertently offending. But the topic of the post is too important not to point out that even if the law and the facts and logic are on the side of right, to expect Republicans not to violate the trust they are given by being elected to office and to expect the conservatives on the Court to abide by anything other than their own political desires is disingenuous to the extreme.